Category: Land

Dorothy Roulstone v O L Panton (Administrator of the Estate of Olive Hinds): PC 27 Jul 1979

Cayman Islands – The Board was asked whether the beneficial interests in certain parcels of land conveyed to the appellant and another jintly on purchases were those of joint tenants so that ion the death of the co-owner intestate, the appellant became owner vy survivorship of the sole legal and beneficial interests. Ther was no suggestion of any severance.

[1979] UKPC 36, [1979] 1 WLR 1465
Bailii

Commonwealth, Land, Trusts

Updated: 29 December 2021; Ref: scu.544923

Birdlip Ltd v Hunter and Another: ChD 24 Mar 2015

The claimant had bought land it wished to develop. The defendant owners of neighbouring land said that they had the benefit of restrictive covenants whch would restrict such development.

Behrens HHJ
[2015] EWHC 808 (Ch)
Bailii
Law of Property Act 1925 84(2)
England and Wales
Citing:
See Also – Birdlip Ltd v Hunter and Another UTLC 24-Mar-2015
UTLC RESTRICTIVE COVENANTS – Entitlement to benefit – Enforceability – right to object . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 29 December 2021; Ref: scu.544917

Swampillai v Joseph: CA 19 Feb 2015

Renewed application for permission to appeal against an order declaring that the defendant held a property in Greenford for himself and the claimant as tenants in common in equal shares; and that the defendant had no beneficial interest in another property registered in her name.

Briggs J
[2015] EWCA Civ 261
Bailii
England and Wales

Trusts, Land

Updated: 29 December 2021; Ref: scu.544903

Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council: SC 18 Mar 2015

Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too large a scale, and that could not invalidate the application. The only question is whether the maps were drawn to a scale of not less than 1:25,000. Maps drawn to a scale of 1:25,000 without making reference to an Ordnance Survey map would satisfy the statutory provisions, even if they contained only detail at a level provided by an Ordnance Survey 1:50,000 map.
Lord Sumption (dissenting) said that the reason a scale had been speificed was to ensure that an appropriate level of detail and accuracy was provided

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson
[2015] UKSC 18, [2015] PTSR 411, [2015] 1 WLR 1406, [2015] WLR(D) 160, [2015] 3 All ER 946, UKSC 2013/0153
Bailii, WLRD, Bailii Summary, SC, SC Summary
Wildlife and Countryside Act 1981, Natural Environment and Rural Communities Act 2006 67, Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, Highways Act 1980 130(1)
England and Wales
Citing:
At first Instance – Trail Riders’ Fellowship and Another, Regina (on The Application of) v Dorset County Council Admn 2-Oct-2012
The claimants challenged rejection of five applications under section 5 of the 1981 Act for modification orders allowing the upgrade of routes to provide vehicular public rights of way. The applications had been submitted using digital mapping. The . .
Appeal from – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
Cited – Grant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Winchester College and Another, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs CA 29-Apr-2008
The college appealed against modifications of definitive map to upgrade two footpaths to byways open to all traffic. The college was circled by footpaths which it wished to protect when the council constructed a new bypass.
Held: The College’s . .
Cited – Maroudas v Secretary of State for Environment, Food and Rural Affairs and Another Admn 9-Mar-2009
Application was to quash the decision of the Secretary of State, made by an inspector in May 2008 following a hearing, to confirm a modification order made in response to an application originally made under section 53(5). It had had several . .
Cited – Maroudas v Secretary of State for Environment Food and Rural Affairs CA 18-Mar-2010
The claimant appealed against an order refusing his request to quash a footpath modification order. The request had not been signed as required.
Held: The appeal succeeded. ‘subject to the de minimis principle, an application must strictly . .
Cited – Inverclyde District Council v Lord Advocate 1981
An application for submission of details supporting an application for outline planning permission had been made within the time limit. However, following an inquiry the Secretary of State had indicated that approval would be appropriate in respect . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 28 December 2021; Ref: scu.544351

Stafford-Flowers, Re: 182 Brambles Chine Estate: UTLC 3 Mar 2015

UTLC RESTRICTIVE COVENANT – discharge – estate comprising 278 holiday bungalows – occupation restriction on 74 days of the year – applicant seeking discharge to allow all year round occupation and removal of holiday use restriction – obsolescence – practical benefits of substantial value or advantage – public interest – injury – application refused – objector’s suggested modification allowed – Law of Property Act 1925 s 84(1)(a), (aa), (b) and (c)

[2015] UKUT 82 (LC)
Bailii
Law of Property Act 1925 84(1)(a)
England and Wales

Land

Updated: 28 December 2021; Ref: scu.544263

Comptroller v Lord Semple: SCS 15 Feb 1555

Lands being comprised by any person, if he from whom they are comprised happen to be forfeited, before the compriser take sasine upon his comprising, the land will fall under forfeiture, notwithstanding of the comprising. So, if he from whom the lands are comprised, happen to die before the compriser be seased in them, the defunct’s heir may be served and retoured heir to him of the same lands: And howbiet the compriser would cast in his comprising before the inquest, yet it would not stop the service of the brieve and retour, without he produce a sasine upon his comprising.

[1555] Mor 212
Bailii

Scotland, Land

Updated: 28 December 2021; Ref: scu.543990

Toms and Another v The Secretary of State for Transport: UTLC 3 Feb 2011

UTLC COMPENSATION – Land Compensation Act 1973 Part I – depreciation by physical factors caused by the use of High Speed 1 – impact of increase in noise, if any – whether compensating authority’s expert evidence admissible – held that it was – analysis of conflicting noise and valuation evidence – whether evidence of agreed settlement tone of assistance – held that it was not – compensation assessed at pounds 1,500.

[2011] UKUT 45 (LC)
Bailii
Land Compensation Act 1973
England and Wales

Land

Updated: 28 December 2021; Ref: scu.440775

Rose Muirhead, The Widow of James Muirhead The Younger, of Bradisholm, Deceased v James Muirhead of Bradisholm: HL 14 Mar 1709

Donatio non presumitur. A disposition by a father to his son, (followed by a sasine, which was not registered) made to preserve the estate from penalties of a test act, might be warrantably cancelled.
Qualified oath. – An oath received, though objected to as containing qualities.

[1709] UKHL Robertson – 4, (1709) Robertson 4
Bailii
Scotland

Land

Updated: 28 December 2021; Ref: scu.553448

Akhverdiyev v Azerbaijan: ECHR 29 Jan 2015

ECHR Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Possessions
Unlawful forced relocation of applicant and demolition of his house: violation
Facts – In 2004 the neighbourhood where the applicant lived became part of a municipal development project. In 2009 the authorities requested the applicant to vacate his house, which he had acquired from his parents in 2005, and accept an occupancy voucher for a new flat under construction as compensation. The applicant initially refused but was later obliged to vacate the property, which was eventually demolished in 2009. He was unsuccessful in an action in the civil courts.
Law – Article 1 of Protocol No. 1: Even though the applicant had acquired ownership only in 2005, the property had been in his unchallenged possession before that date. He thus had a sufficient proprietary interest from the outset for the property to qualify as his ‘possessions’.
As to the lawfulness of the measures taken by the authorities, the Court could not accept that the house had been lawfully expropriated. The expropriation order had been issued more than a year before the applicant became the actual owner of the house, so it could not be described as an ‘expropriation’ act. According to the text of the order, it merely served as a basis for the preparation of the design and as a means for the project developer to obtain the relevant documentation. It could thus not be considered as a lawful basis for interfering with the applicant’s property. Moreover, the ‘expropriation’ procedure had been carried out unlawfully, as the statutory provisions relied on were either irrelevant or inapplicable. The domestic courts had refrained from examining the applicability of the relevant provisions or the issue of lawfulness, despite the applicant’s repeated requests for them to do so. Lastly, the offer of compensation was not lawful as it was based on provisions that were inapplicable in the context of the present case. It followed that the interference with the applicant’s property rights had not been carried out in compliance with the ‘conditions provided for by law’
Conclusion: violation (unanimously).
Article 41: reserved.

76254/11 – Chamber Judgment, [2015] ECHR 97, 76254/11 – Legal Summary, [2015] ECHR 202
Bailii, Bailii Summary
European Convention on Human Rights

Human Rights, Land

Updated: 28 December 2021; Ref: scu.543064

Bath Rugby Ltd v Greenwood and Others: CA 21 Dec 2021

This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). That turns on the question whether there is anyone who can now claim to be entitled to the benefit of the covenant, and that in turn depends on whether the effect of the 1922 conveyance was to annex the benefit of the covenant to identifiable land.

Lady Justice King,
Lord Justice Newey,
And,
Lord Justice Nugee
[2021] EWCA Civ 1927
Bailii, Judiciary
Law of Property Act 1925 84(2)
England and Wales
Citing:
Appeal from – Bath Rugby Ltd v Greenwood and Others (PRE-1926 Restrictive Covenants Affecting Land) ChD 13-Oct-2020
The Court was asked whether a covenant had been attached to the land.
Held: the effect of a 1922 conveyance was to annex the benefit of the covenant to land of the vendor and his tenants adjoining or near the Rec. That meant that Mr White and . .
See Also – Bath Rugby Ltd v Greenwood and Others (Costs : Special Considerations) ChD 27-Oct-2020
. .
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Renals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
Cited – Renals v Cowlishaw 1879
The word ‘assigns’ was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Held: this was insufficient to enable a subsequent owner of the Mill Hill estate who did not . .
Cited – Ives v Brown 1919
Covenants restraining nuisance are ‘Framed for the very purpose of securing a much more adequate protection than that given by the ordinary law of nuisance’ . .
Cited – Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board CA 1949
Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in . .
Cited – Formby v Barker ChD 14-Jul-1903
When on the sale of the whole of a vendor’s land the purchaser enters into a covenant restricting the user of the land, the executor of the vendor cannot maintain an action for an injunction against an assign of the purchaser in respect of a breach . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Ives v Brown 1919
Covenants restraining nuisance are ‘Framed for the very purpose of securing a much more adequate protection than that given by the ordinary law of nuisance’ . .
Cited – J Sainsbury plc v Enfield London Borough Council 1989
Land had been conveyed in 1894, the purchaser covenanting with the vendor (alone). The fact that the vendor retained other land was apparent from other parts of the conveyance, but the covenant was not expressed to be for the benefit of that land. . .
Cited – Re Union of London and Smith’s Bank Ltd’s Conveyance, Miles v Easter ChD 1933
The court considered whether a covenant which was annexed to retained land was annexed to the entire plot only, and not to any part of it.
Bennett J said: ‘In my judgment, in order that an express assignee of a covenant restricting the user of . .
Cited – Shropshire County Council v Edwards 1982
If in the instrument creating a restrictive covenant before 1926, both the land which is intended to be benefited and an intention to benefit that land, as distinct from benefiting the covenantee personally, can clearly be established, then the . .
Cited – Drake v Gray CA 1936
The court considered the enuring of the benefit of a restrictive covenant. Romer LJ said: ‘. . where one finds not ‘the land coloured yellow’ or ‘the estate’ or ‘the field named so and so’ or anything of that kind, but ‘the lands retained by the . .
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – re Selwyn’s Conveyance 1967
. .
Cited – Russell v Archdale ChD 1964
If a covenant was given for the benefit of the whole of a parcel of freehold land, the presumption was that the covenant did not enure for the benefit of subdivided parts of that land unless a development scheme applied to the land . .
Cited – Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd ChD 1952
A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an . .
Cited – Site Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others ChD 13-Jan-2010
A covenant was made in 1926 with ‘the Vendor and his successors in title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part’. Vos J held that it could only be enforced by the . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 28 December 2021; Ref: scu.670635

Khan v Tyne and Wear Passenger Transport Executive (T/A Nexus): UTLC 27 Jan 2015

UTLC COMPENSATION – LIMITATION – whether acquiring authority estopped from relying on limitation defence by continuation of negotiations and advance payment made after expiry of limitation period – section 9, Limitation Act 1980 – notice of reference dismissed

[2015] UKUT 43 (LC)
Bailii
Limitation Act 1980 9
England and Wales

Land, Limitation

Updated: 27 December 2021; Ref: scu.542518

Graham-York v York and Others: CA 10 Feb 2015

The claimant challenged a possession order made in respect of the house she occupied, alleging a constructive trust in her favour. The house had been occupied by the unmarried co-habiting couple for nearly 25 years before the death of one of them. He was the registered proprietor of the property but his partner, the appellant, claimed a beneficial interest under a common intention constructive trust. The issues were, first, whether she had any such interest and, if so, its size and, secondly, whether any such interest had priority over a registered legal charge granted by the deceased. At first instance, the judge held that the appellant had a 25% beneficial interest over which the charge took priority. The appellant now contended that her interest was 50% and that it took priority over the charge but this second issue became in the course of argument a question whether the appellant was entitled to an equity of exoneration in respect of the secured indebtedness.
Held: The sole issue at trial had been whether the appellant’s interest took priority over the charge, and reliance on an equity of exoneration as against the deceased’s estate had never been pleaded. It was raised only after judgment and it was by then too late because the judge had not made findings as to the use or destination of the loan proceeds. If it had been pleaded, it would have raised the issue ‘whether all or some of the debt secured by the mortgage charge represented lending which was not incurred for the benefit of the joint household but solely for the benefit of the deceased Norton York and/or his business interests’. If that was the case, there would have been the possibility, but not the inevitability, that she would be entitled to the equity. Whether the equity arises ‘depends upon the presumed intention of the parties and is highly fact-sensitive.’
As regards the possibility of an equity of exoneration arising, Tomlinson LJ said: ‘However for what it is worth the inference from such evidence as there was seems to me to point away from, rather than towards, the conclusion that the borrowing was for the benefit of Norton York alone. It was the judge’s implicit finding that Norton York was responsible for generating almost all of the income, and thus the assets, which the family unit enjoyed. It is apparent therefore that Miss Graham-York shared the benefit of the deceased’s business ventures and it would be unconscionable that she should do so without sharing the burden of the mortgage. As noted in paragraph 18 above, it was in fact her evidence that Norton York’s business ventures ‘provided us with the wherewithal to live on’. The point was well made by Miss Haren that the question whether it was intended by the parties that the beneficial interest of one of them should be exonerated from the burden of the mortgage debt, is dependent upon the same factors as come into the equation when considering the whole course of dealing between the parties in relation to the property, for the purpose either of deducing their intention or of determining what is fair in relation to their respective shares of the beneficial entitlement. The judge having concluded that Miss Graham-York’s entitlement was 25%, it would be artificial and illogical not to acknowledge that that must in the circumstances be a 25% interest subject to the mortgage indebtedness from which both she and Norton York had derived benefit.’

Moore-Bick VP, Tomlinson, King LJJ
[2015] EWCA Civ 72
Bailii
England and Wales
Cited by:
Cited – Armstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 27 December 2021; Ref: scu.542439

Trail Riders Fellowship v Secretary of State for The Environment, Food and Rural Affairs: Admn 26 Jan 2015

The Fellowship appealed against confirmation of an order changing a Byway open to all traffic to a bridleway, thus excluding their members (in this case motorcyclists) from its use by motorised vehicles.

Collins J
[2015] EWHC 85 (Admin)
Bailii
Wildlife and Countryside Act 1981 Sch 15 P2
England and Wales
Citing:
Cited – Regina v Secretary of State for the Environment ex parte Hood CA 1975
The court considered the nature of the 1949 Act: ‘The object of the statute is this: it is to have all our ancient highways mapped out, put on record and made conclusive, so that people can know what their rights are. Our old highways came into . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 December 2021; Ref: scu.541754

Gilks and Another v Hodgson and Another: CA 15 Jan 2015

Defendants’ appeal against the order of His Honour Judge Armitage QC dated 30 December 2013 in which he made declarations, to which I refer below, as to the boundary of the land known as Fiveacres owned by the Respondents and the land owned by the Second Defendant, and as to the Respondents’ entitlement to a vehicular right of way over a way conveniently referred to as Clay Lane in so far as it is in the ownership of the Second Defendant. The judge also made consequential orders, including an order for the payment by the Appellants of damages for trespass and/or nuisance.

Christopher Clarke, Bean LJJ, Sir Stanley Burnton
[2015] EWCA Civ 5
Bailii
England and Wales

Torts – Other, Land

Updated: 25 December 2021; Ref: scu.541437

Yorkshire Bank Finance Ltd v Mulhall and Another: CA 24 Oct 2008

The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order by normal means is not barred by section 20(1), and unlike the position under a legal mortgage, the creditor’s rights are not barred after 12 years because the holder of a charging order does not have a right to possession such that time can run against it under section 15, and extinction of title cannot therefore occur under section 17. There was no need to distinguish between legal and equitable mortgages and Ezekiel v Orakpo was binding. The defendant’s argument failed.

[2008] EWCA Civ 1156, [2009] 2 All ER (Comm) 164, [2009] BPIR 200, [2009] CP Rep 7, [2008] 3 EGLR 7, [2008] 43 EG 195, [2008] 50 EG 74, [2009] 1 P and CR 16
Bailii
Limitation Act 1980 20(1)20(5) 24, Charging Orders Act 1979 1(1)
England and Wales
Citing:
Applied – Ezekiel v Orakpo CA 16-Sep-1996
A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for . .
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Cited – Edmunds v Waugh 1866
. .
Cited – Holmes v Cowcher ChD 1970
The court accepted the proposition put forward by counsel for the mortgagee that on an application by the mortgagor to redeem the mortgage, all the arrears of interest (amounting to almost 10 years) had to be paid as a condition of redemption, not . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Hughes v Kelly 1843
(Ireland) . .
Cited – Poole Corporation v Moody CA 1945
In relation to a power of sale, the subsection was treated by the Court solely as a provision which excluded the operation of section 2 in claims for equitable relief, without any mention of the possibility of it applying the section by analogy. . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Croydon Unique Ltd v Wright and Crombie, and Crombie Intervenors CA 29-Jul-1999
The beneficiary of a charging order had standing to intervene in proceedings leading to the forfeiture of a lease even several years after the lease had been forfeit. It was an interest derived from the lessee’s interest and a proper basis. The . .

Lists of cited by and citing cases may be incomplete.

Limitation, Land

Updated: 25 December 2021; Ref: scu.277146

Douglas and Angus Estates and Another v McAllister: SCS 6 Jan 2015

The defender had occupied the land since June 2006, using it for pallet storage and lorry parking in connection with his business, which he conducts from adjacent land owned by him. The pursuers averred that they were pro indiviso proprietors of the land and that the defender occupied it without right or title. The defender denied that the pursuers own the land, though asserting no right or title himself. The appeal raised the issue of the extent to which a pursuer requires to establish his own title to land in circumstances where a defender, whom he is trying to remove, does not have any title but avers that the land may be owned by a third party.

Lord Justice Clerk, Lrd Carloway
[2015] ScotCS CSIH – 2
Bailii
Scotland

Land

Updated: 24 December 2021; Ref: scu.540500

Salvesen v Riddell and Another: SCS 6 Jan 2015

The appellant enrolled a motion requesting payment by the Land court of the costs occasioned in a long running legal dispute.

The Lord President
[2015] ScotCS CSIH – 1
Bailii
Scotland
Citing:
At Land Court – Salvesen v Riddell SLC 29-Jul-2010
SLC Agricultural holdings – limited partnership tenancy – limited partner being agent of landlord – notice of dissolution of partnership validly given – notice given on 3 Feb 2003 – expected change of legislation . .
At SCS – Salvesen v Riddell and Another SCS 15-Mar-2012
Second Division – The court allowed an appeal under section 88(1) of the 2003 Act from a decision of the Scottish Land Court. The section was incompatible with the European Convention on Human Rights. The Court proceeded on the basis that section 72 . .
At SC – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .

Lists of cited by and citing cases may be incomplete.

Land, Costs

Updated: 24 December 2021; Ref: scu.540502

Governors of St Thomass Hospital v Charing Cross Railway Company: 6 Mar 1861

Where persons under disability are served with a notice, under the Lands Clauses Act, to take part of a house and premises, they are able to sell under the 92d section, and may require the company to take the whole house, and co, although it may not fall within the limits of deviation of the railway.
Whether a charity corporation can sell land without statutory authority quaere
What constitutes a ‘house and premises ‘ within the 92d section of the Lands Clauses Act discussed.
Section 92 of the Land Clauses Consolidation Act 1845 (which provided that the owner of land being compulsorily acquired could not be required to convey ‘part only of any house, or other building . . ) required the purchase not only of the whole house but also of the gardens and appurtenances of the house.

[1861] EngR 379, (1861) 1 J and H 400, (1861) 70 ER 802
Commonlii
England and Wales
Cited by:
Cited – Dartmouth Court Blackheath Ltd v Berisworth Ltd ChD 27-Feb-2008
Tenants asserted a right of first refusal under the 1987 Act on a proposed disposal of the freehold. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 December 2021; Ref: scu.284140

Various Claimants v Giambrone and Law (A Firm) and Others: QBD 7 Jul 2015

The claimants sought damages after the defendant had sold them time share interests in property in Italy. The purchases were made ‘off-plan’, but the buildings wree never completed. The defendant law firm had in each case been engaged to act for them.

Foskett J
[2015] EWHC 1946 (QB)
Bailii
England and Wales

Consumer, Contract, Land

Updated: 23 December 2021; Ref: scu.550082

Fowles v Heathrow Airport Ltd: ChD 15 Feb 2008

The landlord had opposed the tenant’s application to renew his tenancy, and the tenant also claimed title to additional land by adverse possession. The tenant asserted various business uses, some of which the landlord denied. The landlord went into liquidation, the title was disclaimed by the liquidator, and the mortgagee sold on to the defendant. At the same time in planning enforcement proceedings, the tenant had not asserted some of the uses he now claimed, and he remained in breach of planning controls. The landlord said that the failure to comply with planning obligations allowed the landlord to resist renewal.
Held: A pragmatic approach was appropriate in considering planning enforcement notices. The tenants argument that there was a technical breach by the planners was ineffective. The tenant’s activities on the site had been substantially unlawful over many years. It followed that under the 1954 Act, the court should refuse renewal. As to the claim for acquiring title by adverse possession, the evidence did not support possession over a sufficiently long period of time. The registered proprietor was entitled to possession.

Lewison J
[2008] EWHC 219 (Ch)
Bailii
Landlord and Tenant Act 1954 30(1)(c)
England and Wales
Citing:
Cited – Turner and Bell v Searles (Stanford-le-Hope) Limited 1977
The landlord opposed the grant of a new tenancy. The business tenancy was an oral one, and he opposed renewal on the ground that the tenant was operating in breach of planning controls.
Held: An illegal use is a reason connected with the . .
Cited – Roger Raymond Jarmain v Secretary of State for Environment and Another CA 12-Apr-2000
Brooke LJ contrasted a ‘purist’ approach and a ‘pragmatic’ approach to questions of planning enforcement and preferred the pragmatic approach: ‘Anyone who had any experience of the operation of the former law relating to the enforcement of planning . .
Cited – Cresswell and Cresswell v Pearson Admn 20-Mar-1997
The grant of a temporary planning permission for a use that has previously been the subject of an enforcement notice has the effect of discharging the enforcement notice for all time, in so far as it relates to that use, rather than merely for the . .
Cited – Henry Boot Homes Limited v Bassetlaw District Council CA 28-Nov-2002
The claimant asserted that the behaviour of the local authority gave rise to a legitimate expectation such as to allow them to commence works in breach of a planning condition.
Held: The circumstances under which a claimant might rely upon a . .
Cited – Regina (Westminster City Council) v British Waterways Board HL 1985
The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not . .

Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant, Planning

Updated: 23 December 2021; Ref: scu.264534

Attorney-General v Tomline (No 3): ChD 1877

For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The Crown had entered the land upon the expiry of a licence granted to the Lieutenant-Governor of a nearby fort, Alexander Mair, for life if he so long continued governor, which he ceased to be in 1811. The Crown was in possession of the land for more than forty years and claimed possessory title, and te right to control extraction of coprolites. .
Held: The claim succeeded. Colonel Tomline, as lord of the manor, had an absolute power of veto over the digging up of the coprolites, and ‘The value of that veto appears to me to be the value of the coprolites less so much money as would induce a third person to get them, that is, the measure of damages would be the net returns from the sale of the coprolites less such a sum of money by way of profit as would induce a third person to undertake the enterprise. That I consider to be the proper measure of damage in this case.’

Fry J
(1877) 5 Ch D 750
England and Wales
Cited by:
Cited – Roberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
Appeal From – Attorney-General v Tomline (No 3) CA 1880
The Crown claimed land by adverse possession. It had continued in possession for many years after a licence had expired.
Held: The Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. James LJ: ‘From the time . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .

Lists of cited by and citing cases may be incomplete.

Land, Limitation, Constitutional

Updated: 23 December 2021; Ref: scu.264651

Kalatara Holdings Ltd v Benedict Thomas Andersen and Another: Chd 25 Jan 2008

The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. The owner refused to execute a transfer into the name of the eventual purchaser.
Held: The arrangements would have been possible, and the defendants’ failure amounted to a breach of contract. The defendants were not entitled to rescind the contract and forfeit the deposit.

Evans-Lombe J
[2008] EWHC 86 (Ch)
Bailii
Finance Act 2003 45, Law of Property (Miscellaneous Provisions) Act 1994 2(1)(A)
England and Wales
Citing:
Cited – Union Eagle Limited v Golden Achievement Limited PC 3-Feb-1997
(Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the . .
Cited – Redwell Investments Ltd v 1-3 Cuba Street Ltd CA 14-Dec-2005
Lord Justice Chadwick considered what was meant by actual completion: ‘I accept, of course, that there is no absolute rule that completion takes place when title is transferred . . We were referred to no case in which it has been held that . .
Cited – Aero Properties Ltd and Another v Citycrest Properties Ltd and Another ChD 6-Feb-2002
Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Stamp Duty

Updated: 23 December 2021; Ref: scu.263878

Formby v Barker: ChD 14 Jul 1903

When on the sale of the whole of a vendor’s land the purchaser enters into a covenant restricting the user of the land, the executor of the vendor cannot maintain an action for an injunction against an assign of the purchaser in respect of a breach of the covenant committed after the vendor’s death.
Such a covenant is merely personal and collateral, and the principle of
Tulle v. Moxhay, (1848) 2 Ph. 774, does not apply to it.

(1903) 2 Ch 539, [1903] UKLawRpCh 124
Commom lii
England and Wales
Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 December 2021; Ref: scu.670644

Russell v Archdale: ChD 1964

If a covenant was given for the benefit of the whole of a parcel of freehold land, the presumption was that the covenant did not enure for the benefit of subdivided parts of that land unless a development scheme applied to the land

Buckley J
[1964] 1 Ch 38
England and Wales
Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 December 2021; Ref: scu.670645

Edwards v Rhondda Cynon Taff County Borough Council: UTLC 14 Oct 2014

UTLC COMPENSATION – Planning permission – Compulsory acquisition of land for village by-pass scheme – development potential – APPEAL under s.18 of the Land Compensation Act 1961 against a negative certificate issued pursuant to an application for a Certificate of Appropriate Alternative Development under s.17 of the Act – Appeal allowed

[2014] UKUT 435 (LC)
Bailii
Land Compensation Act 1961 18
England and Wales

Land

Updated: 22 December 2021; Ref: scu.538017

Hicks v The Coal Authority: UTLC 3 Sep 2014

UTLC COMPENSATION – mining subsidence – whether damage to residential property caused by nearby mining activities or whether long standing unrelated defects – burden of proof – whether compensating authority liable to make payment pursuant to section 38 of the Coal Mining Subsidence Act 1991 – Compensation determined at andpound;38,715.39

[2014] UKUT 388 (LC)
Bailii
Coal Mining Subsidence Act 1991 38
England and Wales

Land

Updated: 22 December 2021; Ref: scu.537503

Dickinson v Network Rail Infrastructure Ltd: UTLC 29 Aug 2014

UTLC COSTS – claim for compensation for injurious affection – costs capping – application to join non-party for costs – section 29 of the Tribunals, Courts and Enforcement Act 2007 – rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, as amended

[2014] UKUT 372 (LC)
Bailii
Tribunals, Courts and Enforcement Act 2007 29, Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 10
England and Wales

Land, Costs

Updated: 22 December 2021; Ref: scu.537496

Graves v Capital Home Loans Ltd: CA 9 Oct 2014

The claimant had charged a property to the bank. It was a buy to let. The claimant had succumbed to mental illness and was hospitalised, temporarily lacking capacity to manage his affairs. The bank appointed a receiver, then selling as mortgagee in possession. The claimant now appealed against rejection of his action for trespass againat the bank.

Patten, Underhill, Briggs LJJ
[2014] EWCA Civ 1297
Bailii
England and Wales

Land, Banking

Updated: 22 December 2021; Ref: scu.537465

Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board: CA 1949

Benefit of Covenant Ran with Land

In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in title. In 1940, the first plaintiff took a conveyance from one of the landowners of a part of the land, together with an express assignment of the benefit of the agreement. There was no assignment of the benefit of that agreement in favour of the second plaintiff, the tenant. In 1946, the brook burst its banks, and the land was flooded.
Held: Under section 78 of the Law of Property Act 1925, the tenant could sue the Catchment Board for damages. Section 76 caused the benefit of the agreement to run with the land, so as to benefit the tenant.
Tucker LJ: ‘As to the requirement that the deed containing the covenant must expressly identify the particular land to be benefited, no authority was cited to us and in the absence of such authority I can see no valid reason why the maxim ‘Id certum est quod certum reddi potest’ should not apply, so as to make admissible extrinsic evidence to prove the extent and situation of the lands of the respective land owners adjoining the Eller Brook situate between the Leeds and Liverpool Canal and the River Douglas.’
Somervell LJ set out the conditions for attachment set out in Rogers v Hosegood and said: ‘Both these conditions seem to me to be satisfied. The learned judge goes on to say that in addition there must be an intention that the covenant should so run. I have already dealt with this. It is said, rightly, that the land intended to be protected must be described so as to be ascertainable with reasonable accuracy. It was submitted that it was not so described in this case. It is true that evidence outside the instrument itself would be necessary to show what were the parcels covered by the agreement. This was true of the agreement in Rogers v Hosegood, where the covenant was with named owners (a partnership) …. ‘to all or any of their lands adjoining or near to the said premises.’ There are many cases in which the lands to be benefited are not identified by descriptions with reference to a map or plan.’
Lord Denning said that a third person can sue on a contract to which he is not a party, and referred to section 56 as a clear statutory recognition of this principle, with the consequence that Miller’s case was wrongly decided.

Tucker LJ, Somervell LJ, Denning LJ
[1949] 2 KB 500
Law of Property Act 1925 78
England and Wales
Citing:
Cited – Rogers v Hosegood ChD 1900
The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject . .
Criticised – In re Miller’s Agreement, Uniacke v Attorney-General ChD 1947
Two partners had covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue claimed estate duty.
Held: The claim was rejected. The daughters were not parties to the agreement, and had no . .

Cited by:
Cited – Barnet London Borough Council; Re: Land at Claremont Road comprising Hendon Football Club and Football Ground LT 10-Jul-2006
LT RESTRICTIVE COVENANT – entitlement to benefit – preliminary issue – whether covenant impliedly annexed to land – surrounding circumstances – held no entitlement – objectors not admitted.
The landowners . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Criticised – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 22 December 2021; Ref: scu.245942

Tulk v Moxhay: 22 Dec 1848

Purchaser with notice bound in Equity

A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was bound by it in equity, whether he was bound at law or not, and an injunction was granted to restrain him infringing the covenant. The equitable doctrine is that restrictive covenants follow the land to the new owner on notice. The subsequent owner must be found to have notice before he will be bound by the covenants.
The burden of a positive covenant will not run with the land. In order to bind a successor in title: 1) the covenant must be negative in substance 2) It must benefit the land of the covenantee, 3) The burden must be intended to run with the land, and 4) the successor must have notice of the covenant.
Lord Cottenham LC said: ‘It is said that the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.’ and ‘if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.’

Lord Cottenham LC, Knight Bruce LJ
(1848) 2 Ph 774, [1848] 1 H and TW 105, [1848] 18 LJ Ch 83, [1848] 13 LTOS 21, [1848] 13 Jur 89, [1848] 41 ER 1143 LC, (1848) 11 Beavan 571, [1848] EWHC Ch J34, [1848] EngR 1059, (1848) 1 H and Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, (1848) 41 ER 1143, [1848] EngR 1005, (1848) 11 Beav 571, (1848) 50 ER 937
Bailii, Commonlii, Commonlii, Commonlii
England and Wales
Citing:
Cited – Keppell v Bailey ChD 29-Jan-1834
The court was asked whether the owner of land can burthen it in the hands of future owners by the creation of novel rights.
Held: Lord Brougham said: ‘It must not be supposed that incidents of a novel kind can be devised and attached to . .
Cited – Whatman v Gibson 5-Apr-1838
A, the owner of a piece of land, divided it into lots for building a row of houses, and a deed was made between him of the one part and X and Y, (who had purchased some of the lots from him) and the several persons who should at any time execute the . .
Cited – The Duke of Bedford v The Trustees of The British Museum 6-Jul-1822
Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, . .
Cited – Mann v Stephens 23-Jul-1846
A. being seised in fee of a house and a piece of open land near to it, sold and conveyed the house to E, and covenanted, for himself, his heirs and assigns, with B., his heirs and assigns, that no building whatever should at any time thereafter be . .

Cited by:
Criticised – London County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .
Considered – Patching v Dubbins 1853
The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to . .
Considered – Child v Douglas 5-May-1854
. .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Applied – Hemingway Securities Ltd v Dunraven Ltd and another ChD 16-Aug-1994
The lease contained a covenant against sub-letting. The tenant created a sub-lease in breach of that covenant and without the consent of the landlord.
Held: The head landlord was entitled to an injunction requiring the sub-tenant to surrender . .
Cited – Abbey Homesteads (Developments) Limited v Northamptonshire County Council CA 1986
Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
Cited – Coles v Sims 16-Jan-1854
. .
Cited – Taylor v Gilbertson 3-Jul-1854
. .
Cited – Johnstone v Hall 11-Mar-1856
. .
Cited – Hodson v Coppard 6-Nov-1860
. .
Cited – Heywood v Heywood 19-Nov-1860
. .
Cited – Earl of Zetland v Hislop HL 12-Jun-1882
. .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Leading Case

Updated: 22 December 2021; Ref: scu.181987

Halsall v Brizell: ChD 1957

Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the retained lands were intended to be left upon trust to be used and enjoyed by the owners of the plots and their successors in title. The owners of the plots by the deed covenanted that they and their successors in title would pay a due proportion of the expenses of maintenance of the roads, sewers promenade and sea wall. That proportion was to be determined in an Annual General Meeting of the owners of the plots. The successors in title of an original covenantor were prepared to pay a contribution in respect of one plot but challenged the validity of a resolution at an Annual General Meeting requiring them to pay several contributions because the building on their plot had been subdivided into flats.
Held: Upjohn J said that the successors in title to the covenantors could not be sued on the covenants, but ‘it is conceded that it is ancient law that a man cannot take benefit under a deed without subscribing to the obligations thereunder.’
and
‘If the defendants did not desire to take the benefit of this deed, for the reasons I have given, they could not be under any liability to pay the obligations thereunder. But, of course, they do desire to take the benefit of this deed. They have no right to use the sewers which are vested in the plaintiffs, and I cannot see that they have any right, apart from the deed, to use the roads of the park which lead to their particular house. The defendants cannot rely on any way of necessity or on any right by prescription, for the simple reason that when the house was originally sold in 1931 to their predecessor in title he took the house on the terms of the deed of 1851 which contractually bound him to contribute a proper proportion of the expenses of maintaining the roads and sewers, and so forth, as a condition of being entitled to make use of those roads and sewers. Therefore, it seems to me that the defendants here cannot, if they desire to use this house, as they do, take advantage of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder. Upon that principle it seems to me that they are bound by this deed, if they desire to take its benefits.’

Upjohn J
[1957] 1 All ER 371, [1957] Ch 169
England and Wales
Cited by:
Cited – Bhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .
Cited – IDC Group Ltd and others v Clark and others CA 25-Jun-1991
Sir Nicolas Browne-Wilkinson VC reviewed the cases about constructive trust claims summarising the result as follows: ‘That decision [Lyus] was approved by the Court of Appeal in Ashburn Anstalt v Arnold . . The Court of Appeal put what I hope is . .
Cited – Allied London Industrial Properties Limited v Castleguard Properties Limited CA 24-Jul-1997
The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal . .
Cited – Beckenham Mc Ltd v Centralex Ltd and others ChD 10-Jun-2004
. .
Cited – Schiffahrtsgesellschaft Detlef Von Appen Gmbh v Wiener Allianz Versichrungs Ag and Voest Alpine Intertrading Gmbh CA 16-Apr-1997
. .
Cited – Bluestorm Ltd v Portvale Holdings Ltd CA 13-Feb-2004
The appellant was a lessee of some premises within a development. They purchased the freehold through a subsidiary but then failed to make repairs. When the other tenants withheld the service charges, the company was liquidated. Another tenant . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 22 December 2021; Ref: scu.189960

Jones v Price: 1965

Willmer LJ said: ‘a covenant to perform positive acts . . is not one the burden of which runs with the land so as to bind the successors in title of the covenantor: see Austerberry v. Oldham Corporation.’ and ‘ . . properly speaking, an easement requires no more than sufferance on the part of the occupier of the servient tenement, . . ‘

Willmer LJ
[1965] 2 QB 618
England and Wales
Cited by:
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.260256

J Sainsbury plc v Enfield London Borough Council: 1989

Land had been conveyed in 1894, the purchaser covenanting with the vendor (alone). The fact that the vendor retained other land was apparent from other parts of the conveyance, but the covenant was not expressed to be for the benefit of that land. The first issue was from what facts or documents might the intention that the covenants should enure for the benefit of the retained land be inferred or expressed. On that Morritt J summarised the rival submissions at 595H-596A as follows:
‘the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself.’
Morritt J held that the authorities demonstrated that the plaintiffs’ submission was correct (at 596F). I agree. The relevant conveyance can be construed in the light of surrounding circumstances, and, like any other instrument, its interpretation can depend not only on its express terms but on any necessary implication; but the exercise remains one of interpreting the document, not of inferring intentions from surrounding circumstances alone.
Morritt J first asked from what fact or facts might it be inferred that the intention in a conveyance was that restrictive covenants should enure for the benefit of the retained land, and recorded the contentions of the parties as follows: ‘On the first issue, the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself.’
Held: The plaintiffs’ submission was correct, and, having considered the surrounding circumstances: ‘There are no words in the conveyance indicating any such intention, nor do I consider the surrounding circumstances necessitate any implication.’ The successful applicant for a declaration under section 84(2) should be paid its costs by the defendants.

Morritt J
[1989] 1 WLR 590
Law of Property Act 1925 84(2)
England and Wales
Cited by:
Not Followed – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Cited – Barnet London Borough Council; Re: Land at Claremont Road comprising Hendon Football Club and Football Ground LT 10-Jul-2006
LT RESTRICTIVE COVENANT – entitlement to benefit – preliminary issue – whether covenant impliedly annexed to land – surrounding circumstances – held no entitlement – objectors not admitted.
The landowners . .
Cited – Seymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Costs, Land

Updated: 22 December 2021; Ref: scu.220713

Cooke v Chilcott: 1876

The purchaser of land with a well covenanted to erect a pump and reservoir and to supply water from the well to all houses built on the vendor’s land. Enforcement was sought against a purchaser.
Held: He had purchased with notice of the covenant, it rand with the land and he was bound by it. Malins VC said: ‘I think that when a contract is entered into for the benefit of contiguous landowners, and one is bound by it and the other entitled to the benefit of it, the covenant binds him for ever, and also runs with the land. But it is equally clear that he is bound by taking the land with notice of the covenant.’

Malins VC
(1876) 3 ChD 694
Cited by:
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.260254

Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same: CA 1895

The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of light. The fact that the wrongdoer is in some sense a public benefactor has never been considered a sufficient reason to refuse an injunction against a nuisance he creates. The Act which gave the Courts of Equity a discretion to award damages in place of an injunction did not thereby alter the rules on the grant of injunctions, and where an injunction was a proper remedy, the use of the discretion was not to be used to excuse wrong doing. A party with the benefit of a restrictive covenant is, as a general rule, entitled to an injunction on the trial of the action as distinct from an award of damages unless (1) the injury to the plaintiff’s legal rights is small, (2) it is capable of being estimated in terms of money, (3) it can adequately be compensated for by a small payment and (4) it would be oppressive to the defendant to grant an injunction.
AL Smith LJ said: ‘Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.
In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction.
There are, however, cases in which this rule may be relaxed, and in which the damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that – (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: – then damages in substitution for an injunction may be given.

There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff’s legal right to light to a window in a cottage represented by andpound;15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the plaintiff is certainly not small; nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment.’
Lindley LJ said: ‘Ever since Lord Cairns’ Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that court into a tribunal for legalizing wrongful acts: or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrondgoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrondoer is in some sense a public benefactor (eg a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it.’ and

‘Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy – as where the acts complained of are already finished – an injunction can be properly refused.’

Lindley LJ, A L Smith LJ
[1895] 1 Ch 287, [1891-4] All ER Rep 838, (1895) 64 LJ Ch 216, (1895) 72 LT 34, (1895) 12 R 112
Chancery Amendment Act 1858 (Lord Cairns’ Act)
England and Wales
Cited by:
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Applied – Kennaway v Thompson CA 30-Apr-1980
The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – Kine v Jolly CA 1905
The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: ‘I think it is impossible to doubt that the tendency of the speeches in the . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Jacklin and Another v Chief Constable of West Yorkshire CA 16-Feb-2007
The claimants asserted a vehicular right of way over land belonging to the defendant poilce authority. The defendant said that it had been abandoned. The judge found that it had not been and granted an injunction to prevent the defendants . .
Cited – Ludlow Music Inc v Williams and others ChD 2-Oct-2000
The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .
Cited – Banks v EMI Songs Ltd (No.2) ChD 1996
Jacob J referred to the judgment of AL Smith LJ in Shelfer, and granted an injunction, even though he was not able to say that a small sum of money would be adequate compensation. The ‘checklist’ in that judgment was not an exhaustive statement and . .
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Cited – ACCO Properties Ltd v Severn and Another ChD 1-Apr-2011
The parties disputed the boundary between their respective plots.
Held: Simon Barker QC J set out (and then applied) the principles for resolving boundary lines: ‘1 Where, as in this case, the property in question is registered land, the file . .
Cited – Slack v Leeds Industrial Co-operative Society Ltd CA 1924
Nothing in Colls served to undermine the ‘good working rule’ of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Explained – Fishenden v Higgs and Hill Ltd CA 1935
An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .
Cited – Regan v Paul Properties Ltd and others CA 26-Oct-2006
The court considered the appropriate remedy after a finding of infringement of a right to light, and in particular: ‘whether the proper remedy for infringement in this case is damages for nuisance, as ordered by the court below, or whether a . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Damages, Land

Leading Case

Updated: 22 December 2021; Ref: scu.182118

Crest Nicholson Residential (South) Ltd v McAllister: CA 1 Apr 2004

Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be easily ascertainable. It would be oppressive to expect a purchaser of land to establish the facts himself. Those drafting such covenants should bear in mind the probable need for the covenant to be examined many years later. A restrictive covenant affecting land will not be enforceable in equity against a purchaser who acquires a legal estate for value without notice of the covenant. A restrictive covenant imposed in an instrument made after 1925 is registrable as a land charge. If the title is registered, protection is effected by entering notice of the restrictive covenant on the register. In this case the land no longer had the benefit of the covenant, it had not been annexed or assigned.

Lord Justice Auld Lord Justice Chadwick And Lady Justice Arden
[2004] EWCA Civ 410, Times 06-May-2004, [2004] 1 WLR 2409, [2004] 2 All ER 991, [2004] 2 P and CR 486
Bailii
England and Wales
Citing:
Appeal from – Crest Nicholson Residential (South) Ltd v McAllister ChD 18-Nov-2002
A vendor/purchaser covenant was not to use the premises, ‘for any purpose other than those of or in connection with a private dwellinghouse.’ The parties requested the court to construe its meaning. The meaning had been considered before and settled . .
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Rogers v Hosegood ChD 1900
The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject . .
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – Dano Ltd v Earl Cadogan and others CA 19-May-2003
The defendants appealed against an order declaring that restrictive covenants on land of which they claimed the benefit were no longer of effect.
Held: The covenants were expressed to be in favour of property for so long as it formed part of . .
Cited – Roake and others v Chadha and another QBD 1984
Land was laid out in individual lots and sold off in a standard form requiring that no building should be erected other than one private dwelling house and that plans should be submitted for approval. The defendants purchased one lot and wished to . .
Cited – Whitgift Homes Limited and Others v Pauline Stocks and Others CA 21-Nov-2001
Annexation of covenants – building scheme – enforceability after plots sold off. . .
Applied – Dobbs v Linford CA 1953
The tenant had entered into a covenant: ‘not to use the said premises for any purpose other than as a private dwelling-house And not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing . .

Cited by:
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Mohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
Cited – Seymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Cited – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.195115

Mohammadzadeh v Joseph and others: ChD 15 Feb 2006

The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants were enforceable: ‘in the case of a post 1925 conveyance, once it is established that a restrictive covenant relates to, that is to say, ‘touches and concerns’, the vendor’s retained land, section 78(1) obviates the need to show separately and additionally by reference to the express terms of, or a necessary implication in, the conveyance an intention that the covenant shall benefit the land so as to be enforceable by successors in title of the covenantee rather than be enforceable only as a matter of contract by the covenantee and those to whom the covenantee expressly assigns the benefit of the covenant. ‘

Etherton J
[2006] EWHC 1040 (Ch)
Bailii
Law of Property Act 1925 84(2)
England and Wales
Citing:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister ChD 18-Nov-2002
A vendor/purchaser covenant was not to use the premises, ‘for any purpose other than those of or in connection with a private dwellinghouse.’ The parties requested the court to construe its meaning. The meaning had been considered before and settled . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.241684

Rogers v Hosegood: ChD 1900

The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject to covenants restricting building to one private residence, and in 1873 sold another plot to Sir John Millais. The Duke in his conveyances covenanted with the vendors their heirs and assigns, the conveyances expressly stating that his covenants were made ‘with intent that the covenants . . might enure to the benefit of [the vendors], their heirs and assigns and others claiming under them to all or any of their lands adjoining or near to the said premises’.
Held: The words were a sufficient description: ‘The real and only difficulty arises on the question – whether the benefit of the covenants has passed to the assigns of Sir John Millais as owners of the plot purchased by him on March 25, 1873, there being no evidence that he knew of these covenants when he bought. Here, again, the difficulty is narrowed, because by express declaration on the face of the conveyances of 1869 the benefit of the two covenants in question was intended for all or any of the vendor’s lands near to or adjoining the plot sold, and therefore for (amongst others) the plot of land acquired by Sir John Millais.’ and ‘Covenants which run with the land must have the following characteristics: (1.) they must be made with a covenantee who has an interest in the land to which they refer; (2.) they must concern or touch the land.’

Farwell J
[1900] 2 Ch 388
England and Wales
Cited by:
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board CA 1949
Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in . .

Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 22 December 2021; Ref: scu.196681

Cantrell v Wycombe District Council: CA 29 Jul 2008

The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was registered as a local land charge. The appellant challenged an order that the house remained subject to the covenant.
Held: The burden of a positive covenant does not pass in common law, but only in equity, and therefore only equitable remedies would be available, typically by injunction. Section 609 operated to confer standing on a statutory body, and did not enlarge the extent to which covenants would have been enforceable if the statutory body had had standing under the general law.

Moore-Bick LJ, Stanley Burnton LJ, Lewison J
[2008] EWCA Civ 866, Times 10-Oct-2008
Bailii
Housing Act 1985 609
England and Wales
Citing:
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Gee v National Trust CA 1966
Lord Denning MR considered the effect of section 8 of the 1937 Act which read: ‘Where any person is willing to agree with the National Trust that any land or any part thereof shall so far as his interest in the land enables him to bind it be made . .
Cited – Inland Revenue Commissioners v Joiner HL 26-Nov-1975
HL Surtax – Tax advantage – Transaction in securities – Company recon- struction – Surplus assets o f old company distributed in voluntary liquidation – Agreement for liquidation providing for agreed methods o f . .
Cited – London County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 22 December 2021; Ref: scu.271221

Seymour Road (Southampton) Ltd v Williams and Others: ChD 29 Jan 2010

The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically attached to the land. Here there was no implied or explicit annexation of the covenants. The covenants were intended to be exercisable by the covenantee for only as long as it retained land.
Since the covenants allowed for consents, it could not be inferred that on the disappearance of the covenantee, the covenants became absolute.

Peter Smith J
[2010] EWHC 111 (Ch)
Bailii
Conveyancing Act 1881 58, Law of Property 1925 78
England and Wales
Citing:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Renals v Cowlishaw 1879
The word ‘assigns’ was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Held: this was insufficient to enable a subsequent owner of the Mill Hill estate who did not . .
Cited – J Sainsbury plc v Enfield London Borough Council 1989
Land had been conveyed in 1894, the purchaser covenanting with the vendor (alone). The fact that the vendor retained other land was apparent from other parts of the conveyance, but the covenant was not expressed to be for the benefit of that land. . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Sugarman v Porter and others ChD 8-Mar-2006
The claimant said that his land was free of restrictive covenants in favour of the land owned by the defendants, and requested a declaration to that effect. . .
Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.396453

Bath Rugby Ltd v Greenwood and Others (PRE-1926 Restrictive Covenants Affecting Land): ChD 13 Oct 2020

The Court was asked whether a covenant had been attached to the land.
Held: the effect of a 1922 conveyance was to annex the benefit of the covenant to land of the vendor and his tenants adjoining or near the Rec. That meant that Mr White and 77 GPS were each entitled to the benefit of the covenant and it was enforceable by them (among others).

HHJ Paul Matthews,
(Sitting as a Judge of the High Court)
[2020] EWHC 2662 (Ch)
Bailii
Law of Property Act 1925 84(2)
England and Wales
Cited by:
See Also – Bath Rugby Ltd v Greenwood and Others (Costs : Special Considerations) ChD 27-Oct-2020
. .
Appeal from – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.655010

Site Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others: ChD 13 Jan 2010

A covenant was made in 1926 with ‘the Vendor and his successors in title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part’. Vos J held that it could only be enforced by the owner of an area of land which could properly be regarded as the Canford Estate and that it would be nothing short of absurd if covenants made in favour of the Canford Estate could be enforced by every transferee of land from the Estate.

Vos J
[2010] EWHC 10 (Ch), [2011] Ch 226, [2011] 2 WLR 74, [2010] NPC 4
Bailii
England and Wales
Citing:
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .

Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.392992

Morland v Cook: CA 1868

Land below sea level was partitioned by a deed with a covenant that the expense of maintaining the sea wall should be borne by the owners of the lands and payable out of the lands by an acre-scot.
Held: The covenant was enforced against a purchaser of the lands on the grounds that he had purchased with notice of the covenant.

Lord Romilly MR
(1868) LR 6 Eq 252
England and Wales
Cited by:
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.260253

Tophams Ltd v Earl of Sefton: HL 1967

Section 79 of the Law of Property Act (relating to the burden of covenants) achieved no more than the introduction of statutory shorthand into the drafting of covenants. It does does not have the effect of causing covenants to run with the land

Lord Upjohn and Lord Wilberforce
[1967] 1 AC 50
Law of Property Act 1925 79
England and Wales
Cited by:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.248259

Shropshire County Council v Edwards: 1982

If in the instrument creating a restrictive covenant before 1926, both the land which is intended to be benefited and an intention to benefit that land, as distinct from benefiting the covenantee personally, can clearly be established, then the benefit of the covenant will be annexed to that land and run with it, notwithstanding the absence of express words of annexation.

Rubin Hhj
(1982) 46 P and CR 270
England and Wales
Cited by:
Cited – Crest Nicholson Residential (South) Ltd v McAllister ChD 18-Nov-2002
A vendor/purchaser covenant was not to use the premises, ‘for any purpose other than those of or in connection with a private dwellinghouse.’ The parties requested the court to construe its meaning. The meaning had been considered before and settled . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.196678

Roake and others v Chadha and another: QBD 1984

Land was laid out in individual lots and sold off in a standard form requiring that no building should be erected other than one private dwelling house and that plans should be submitted for approval. The defendants purchased one lot and wished to erect an additional house in contravention of the restriction. The plaintiffs owned other lots conveyed by transfers which contained no express assignment of the benefit of the covenant. The plaintiffs sought a declaration that they were entitled to the benefit of that covenant and an order restraining breach. The express words of the covenant excluded annexation, and that there was no building scheme. Nevertheless, the covenant had become annexed to Estate and by section 78 of the 1925 Act, because of a contrast between section 78 and section 79. The legislature must have intended the provisions of section 78 to be mandatory, not capable of exclusion.
Held: the Court rejected that submission. No reason of policy had been suggested to explain why section 78 should be mandatory: ‘I am thus far from satisfied that section 78 has the mandatory operation which [counsel] claimed for it. But if one accepts that it is not subject to a contrary intention, I do not consider that it has the effect of annexing the benefit of the covenant in each and every case irrespective of the other express terms of the covenant. ‘ and ‘The true position as I see it is that even where a covenant is deemed to be made with successors in title as section 78 requires, one still has to construe the covenant as a whole to see whether the benefit of the covenant is annexed. Where one finds the covenant is not qualified in any way, annexation may be readily inferred; but where, as in the present case, it is expressly provided: ‘this covenant shall not enure for the benefit of any owner or subsequent purchaser of any part of the vendor’s Sudbury Court Estate at Wembley unless the benefit of this covenant shall be expressly assigned . . ‘ one cannot just ignore these words. One may not be able to exclude the operation of the section in widening the range of the covenantees, but one has to consider the covenant as a whole to determine its true effect. When one does that, then it seems to me that the answer is plain and in my judgment the benefit was not annexed. That is giving full weight to both the statute in force and also what is already there in the covenant.’

Paul Baker QC
[1984] 1 WLR 40
Law of Property Act 1925 78 79
England and Wales
Citing:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .

Cited by:
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.196685

Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia): ChD 31 Jul 2002

Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought determination of whether the trusts were charitable, or whether it held the land under the 1937 or 1976 Acts; if the words ‘upon trust’ could be read to be a mere reference to a statutory purpose.
Held: The fact that the trusts might fail as charitable trusts and that the council’s money would be spent in pursuing them did not mean, of themselves, that the trust created was a reference to the council’s statutory powers. The word ‘trusts’ can have wide uses, but in a conveyance, it has a technical meaning. The trusts were not restrictive as to who should benefit. The fact that members of various clubs might be the ones to take benefit did not prevent the trust being for the benefit of the public, though gifts for the promotion of sporting interests were not generally charitable. This particular trust was charitable. The Council could accept the land on charitable trusts.

The Honourable Mr Justice Hart
[2002] EWCA 1623 (Ch)
Bailii
Physical Training and Recreation Act 1937 4, Local Government (Miscellaneous Provisions) Act 1976 19
England and Wales
Citing:
Cited – Richmond on Thames London Borough Council v Attorney-General 1982
. .
Cited – Liverpool City Council v Attorney General 15-May-1992
Land had been given to the local authority ‘for use as a recreation ground and for no other purpose’ The Attorney-General sought to oblige the authority to maintain it as such.
Held: The form of gift was not charitable, and no obligation to . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Dunne v Byrne PC 22-Feb-1912
Will – Construction – Charitable Bequest – Fund to be expended for the Good of
Religion – Religious Purposes.
Held, that a residuary bequest ‘to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly . .
Cited – Monds v Stackhouse 1948
(High Court of Australia) A gift of money was made to the Corporation of a city to provide the nucleus of a fund to provide ‘a suitable hall or theatre for the holding of concerts to provide music for the citizens of the City and for the production . .
Cited – Regina v Somerset County Council Ex Parte Fewings and Others CA 22-Mar-1995
The local authority had accepted the argument that stag hunting was cruel and had banned it from the land it owned in the Quantocks. The ban was challenged.
Held: The ban was unlawful. The decision had been reached on moral, and not on . .

Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land, Charity, Trusts

Updated: 22 December 2021; Ref: scu.174432

Allied London Industrial Properties Limited v Castleguard Properties Limited: CA 24 Jul 1997

The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal only.
Held: The appeal was dismissed. The judge had correctly identified that the draftsman had differentiated several times between provisions intended to enure for the benefit of successors and those which did not.

Leggatt LJ, Morritt LJ, Brooke LJ
[1997] EWCA Civ 2180
Law of Property Act 1925 187(1)
England and Wales
Citing:
Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
Cited – Shiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
Cited – Austerberry v Oldham Corporation CA 1882
Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns.
Held: Neither the . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.142577

Re Union of London and Smith’s Bank Ltd’s Conveyance, Miles v Easter: ChD 1933

The court considered whether a covenant which was annexed to retained land was annexed to the entire plot only, and not to any part of it.
Bennett J said: ‘In my judgment, in order that an express assignee of a covenant restricting the user of land may be able to enforce that covenant against the owner of the land burdened with the covenant, he must be able to satisfy the Court of two things. The first is that it was a covenant entered into for the benefit of protection of land owned by the covenantee at the date of the covenant. Otherwise it is a covenant in gross, and unenforceable except as between the parties to the covenant: see Formby v Barker. Secondly the assignee must be able to satisfy the Court that the deed containing the covenant defines or contains something to define the property for the benefit of which the covenant was entered into: see James L.J. in Renals v Cowlishaw. ‘

Bennett J
[1933] Ch 611
England and Wales
Cited by:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.248260

London and South Western Railway Co v Gomm: CA 1882

A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right to repurchase.
Jessel MR set out the basis on which an equitable interest arises in the case of an option: ‘The right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land.’
He went on to consider the possibility of it being enforced in equity: ‘With regard to the argument founded on Tulk v. Moxhay, 2 Ph. 774 that case was very much considered by the Court of Appeal in Haywood v. The Brunswick Permanent Benefit Building Society, 8 Q.B.D. 403, and the court there decided that they would not extend the doctrine of Tulk v. Moxhay to affirmative covenants, compelling a man to lay out money or do any other act of what I may call an active character, but that it was to be confined to restrictive covenants. Of course that authority would be binding upon us if we did not agree to it, but I most cordially accede to it. I think that we ought not to extend the doctrine of Tulk v. Moxhay in the way suggested here. The doctrine of that case appears to me to be either an extension in equity of the doctrine of Spencer’s case to another line of cases, or else an extension in equity of the doctrine of negative easements.
The covenant in Tulk v. Moxhay was affirmative in its terms, but was held by the court to imply a negative. Where there is a negative covenant expressed or implied, the court interferes on one or other of the above grounds. This is an equitable doctrine, establishing an exception to the rules of common law which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running with the land or on analogy to an easement. The purchaser took the estate subject to the equitable burden, with the qualification that if he acquired the legal estate for value without notice he was freed from the burden.’
Lindley LJ said that because in Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 Q.B.D. 403 it was sought to extend the doctrine of Tulk v. Moxhay: ‘to a degree which was thought dangerous, considerable pains were taken by the court to point out the limits of that doctrine.
The conclusion arrived at was that Tulk v. Moxhay, when properly understood, did not apply to any but restrictive covenants.’

Jessel MR, Lindley LJ
(1882) 20 ChD 563
England and Wales
Citing:
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited – Haywood v The Brunswick Permanent Benefit Building Society CA 1881
The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings.
Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it.
Brett LJ . .

Cited by:
Cited – Neville and Another v Wilson and Others CA 4-Apr-1996
A parole agreement by all the shareholders in a company, to liquidate it, created a constructive trust. That a specifically enforceable agreement to assign an interest in property, created an equitable interest in the assignee, was unquestionably . .
Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.180918

Tito v Waddell (No 2); Tito v Attorney General: ChD 1977

Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: ‘Will a sale of trust property by the trustee to his wife be set aside?’, nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee’s wife from whom he has been living separate and in enmity for a dozen years.’
The issue arose, in relation to ‘the 1931 transaction’, as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: ‘In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government.’
As to damages: ‘Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages.’

Megarry VC
[1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972
Crown Proceedings Act 1947 40(2)(b)
England and Wales
Citing:
Applied – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .

Cited by:
Cited – Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Cited – Rhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Constitutional, Damages

Leading Case

Updated: 22 December 2021; Ref: scu.183016

Rhone and Another v Stephens: CA 17 Mar 1993

A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the judge held that the roof was still owned by the main house, and that the owner of the cottage was able to enforce the covenant under the principle of pure benefit and burden.
Held: The burden of positive covenant did not run with the freehold. To allow the purre benefit and burden proinciple to work in this way would circumvent the rule in Austerberry. The benefits reserved for the main house were minimal and insufficient to make the benefit and burden pronciple operative.

Gazette 17-Mar-1993, [1993] EGCS 3
England and Wales
Citing:
Cited – Austerberry v Oldham Corporation CA 1882
Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns.
Held: Neither the . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .

Cited by:
Appeal from – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
cgis_britelChD2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.88766

Drake v Gray: CA 1936

The court considered the enuring of the benefit of a restrictive covenant. Romer LJ said: ‘. . where one finds not ‘the land coloured yellow’ or ‘the estate’ or ‘the field named so and so’ or anything of that kind, but ‘the lands retained by the vendor,’ it appears to me that there is a sufficient indication that the benefit of the covenant enures to every one of the lands retained by the vendor, and if a plaintiff in a subsequent action to enforce a covenant can say: ‘I am the owner of a piece of land that belonged to the vendor at the time of the conveyance,’ he is entitled to enforce the covenant.’
Greene LJ said: ‘There are two familiar methods of indicating in a covenant of this kind the land in respect of which the benefit is to enure. One is to describe the character in which the covenantee receives the covenant. This is the form which is adopted here, a covenant with so and so, owners or owner for the time being of whatever the land may be. Another method is to state by means of an appropriate declaration that the covenant is taken ‘for the benefit of’ whatever the lands may be.’

Romer LJ , Greene LJ
[1936] Ch 451
England and Wales
Cited by:
Cited – Federated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.248261

Renals v Cowlishaw: 1879

The word ‘assigns’ was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Held: this was insufficient to enable a subsequent owner of the Mill Hill estate who did not have any express assignment of the benefit of the covenant to enforce the covenant:
‘in order to enable a purchaser as an assign (such purchaser not being an assign of all that the vendor retained when he executed the conveyance containing the covenants, and that conveyance not shewing that the benefit of the covenant was intended to enure for the time being of each portion of the estate of which the Plaintiff is assign) to claim the benefit of a restrictive covenant, this, at least, must appear, that the assign acquired his property with the benefit of the covenant, that is, it must appear that the benefit of the covenant was part of the subject-matter of the purchase.’
Held: This was insufficient to enable a subsequent owner of the Mill Hill estate who did not have any express assignment of the benefit of the covenant to enforce the covenant: ‘in order to enable a purchaser as an assign (such purchaser not being an assign of all that the vendor retained when he executed the conveyance containing the covenants, and that conveyance not shewing that the benefit of the covenant was intended to enure for the time being of each portion of the estate of which the Plaintiff is assign) to claim the benefit of a restrictive covenant, this, at least, must appear, that the assign acquired his property with the benefit of the covenant, that is, it must appear that the benefit of the covenant was part of the subject-matter of the purchase.’ The term ‘assigns’ was used to denote successors in title to the land both of the original restrictive covenantor and of the original covenantee.

Hall V-C
(1878) 9 Ch D 125
England and Wales
Cited by:
Appeal from – Renals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Seymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.220702

Austerberry v Oldham Corporation: CA 1882

Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns.
Held: Neither the benefit nor the burden of this covenant ran with the land. A purchaser from the trustees was not bound even with notice of the covenant and of the disrepair. A covenant to perform positive acts is not one the burden of which runs with the land so as to bind the covenantor’s successors in title.
Cotton LJ said: ‘Undoubtedly, where there is a restrictive covenant, the burden and benefit of which do not run at law, courts of equity restrain anyone who takes the property with notice of that covenant from using it in a way inconsistent with the covenant. But here the covenant which is attempted to be insisted upon on this appeal is a covenant to lay out money in doing certain work upon this land; and, that being so . . that is not a covenant which a court of equity will enforce: it will not enforce a covenant not running at law when it is sought to enforce that covenant in such a way as to require the successors in title of the covenantor, to spend money, and in that way to undertake a burden upon themselves. The covenantor must not use the property for a purpose inconsistent with the use for which it was originally granted; but in my opinion a court of equity does not and ought not to enforce a covenant binding only in equity in such a way as to require the successors of the covenantor himself, they having entered into no covenant, to expend sums of money in accordance with what the original covenantor bound himself to do.’

Cotton LJ
(1885) 29 ChD 750, [1882] 55 LJ Ch 633, [1882] 53 LT 543, [1882] 49 JP 532, [1882] 33 WR 807, [1882] 1 TLR 473
England and Wales
Cited by:
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Rhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
Cited – Allied London Industrial Properties Limited v Castleguard Properties Limited CA 24-Jul-1997
The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.183261

Marquess of Zetland v Driver: CA 1939

The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same may come and to benefit and protect such part or parts of the lands in the Borough Township or Parish of Redcar . . now subject to the settlement (a) as shall for the time being remain unsold or (b) as shall be sold by the vendor or his successors in title with the express benefit of this covenant . . that he would observe restrictions including a restriction on use which, in the opinion of the vendor, might be detrimental to him or the owners or occupiers of any adjoining property in the neighbourhood.’ The land was later conveyed to the defendant for a use (sale of fried fish) to which the plaintiff objected.
Held: The covenant was enforceable by a successor in title of the original covenantee against a successor in title of the original covenantor.
Farwell J said: ‘The covenant is restrictive; it is expressly stated in the conveyance to be for the benefit of the unsold part of the land comprised in the settlement and such land is easily ascertainable, nor is it suggested that at the date of the conveyance the land retained was not capable of being benefited by the restrictions, and lastly the appellant is the successor in title of the original covenantee and as such is the estate owner of part of the land unsold which is subject to the settlement.’ (Emphasis added.) But the court went on: ‘It is to be noticed in the present case that the benefit of the covenant is not intended to pass to a purchaser without express assignment. It is not necessary for us to express any opinion as to what would be the effect of a sale of part of the settled property with an express assignment of the covenant; but, if such a purchaser could enforce the covenant, it could only be for so long as some successor in title of the original covenantee retained some part of the settled property, since such a person alone can form the requisite opinion. For these reasons the appeal must be allowed. The appellant is entitled to the injunction which he seeks subject to two limitations. In the first place the injunction must be limited to fried fish … because the opinion of the appellant as to the nuisance was confined to fried fish, and secondly, the period of the injunction must be confined to so long as the appellant or some successor in title of the original vendor retains unsold any part of the settled property for the benefit of which the covenant was imposed.’
Farwell J: ‘Covenants restricting the user of land imposed by a vendor upon a sale fall into three classes: (i) covenants imposed by a vendor for his own benefit; (ii) covenants imposed by a vendor as owner of other land, of which that sold formed a part, and intended to protect or benefit the unsold land; and (iii) covenants imposed by a vendor upon a sale of land to various purchasers who are intended mutually to enjoy the benefit of and be bound by the covenants . . . Covenants of the first class are personal to the vendor and enforceable by him alone unless expressly assigned by him. Covenants of the second class are said to run with the land and are enforceable without express assignment by the owner for the time being of the land for the benefit of which they were imposed. Covenants of the third class are most usually found in sales under building scheme, although not strictly confined to such sales. It is not suggested that the present covenant falls within this class. Nor will it assist the appellant if it falls within the first class, since he was not the original covenantee or an express assignee from him. If, therefore, the appellant is entitled to sue on this covenant it must fall within the second class above mentioned. Such covenants can only be validly imposed if they comply with certain conditions. Firstly, they must be negative covenants. No affirmative covenant requiring the expenditure of money or the doing of some act can ever be made to run with the land. Secondly, the covenant must be one that touches or concerns the land, by which is meant that it must be imposed for the benefit or to enhance the value of the land retained by the vendor or some part of it, and no such covenant can ever be imposed if the sale comprises the whole of the vendor’s land. Further, the land retained by the vendor must be such as to be capable of being benefited by the covenant at the time when it is imposed. Thirdly, the land which is intended to be benefited must be so defined as to be easily ascertainable, and the fact that the covenant is imposed for the benefit of that particular land should be stated in the conveyance and the persons or the class of persons entitled to enforce it. The fact that the benefit of the covenant is not intended to pass to all persons into whose hands the unsold land may come is not objectionable so long as the class of persons intended to have the benefit of the covenant is clearly defined.’ ‘The appellant is entitled to the injunction which he seeks subject to two limitations. In the first place the injunction must be limited to fried fish . . . because the opinion of the appellant as to the nuisance was confined to fried fish, and secondly, the period of the injunction must be confined to so long as the appellant or some successor in title of the original vendor retains unsold any part of the settled property for the benefit of which the covenant was imposed. . . .’

Farwell J
[1939] Ch 1
England and Wales
Citing:
Cited – Osborne v Bradley ChD 1903
The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land . .

Cited by:
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Mohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
Cited – City Inn (Jersey) Ltd v Ten Trinity Square Ltd CA 6-Mar-2008
A release of a restrictive covenant had been granted to a predecessor in title of the claimants. The defendants said that the release had been personal to the party to whom it was given, and that the covenant still bound the land.
Held: The . .
Cited – Seymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.196682

Renals v Cowlishaw: CA 2 Jan 1879

The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, their heirs, executors, administrators and assigns, including a restriction on building within a certain distance of a road ‘leading to the Mill Hill house and property belonging to the said trustees’, but did not state that this covenant was for the protection of the residential property, or in reference to the other adjoining pieces of land, or make any statement or reference thereto. Held The court upheld the judgment below. James LJ said: ‘To enable an assign to take the benefit of restrictive covenants, there must be something in the deed to define the property for the benefit of which they were entered into. Supposing I were now framing the deed afresh I should not have the remotest idea how the covenant ought to be framed, as I cannot tell what the property was which the parties intended to be protected, and within what limits.’

James LJ
(1879) 11 Ch D 866
England and Wales
Citing:
Appeal from – Renals v Cowlishaw 1879
The word ‘assigns’ was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Held: this was insufficient to enable a subsequent owner of the Mill Hill estate who did not . .

Cited by:
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.220703

In re Nisbet and Potts’ Contract: 1905

Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the equitable right of persons entitled to the benefit of prior restrictive covenants to enforce them against the land.
Farwell J said: ‘Covenants restricting the enjoyment of land, except of course as between the contracting parties and those privy to the contract, are not enforceable by anything in the nature of action or suit founded on contract. Such actions and suits alike depend on privity of contract, and no possession of the land coupled with notice of the covenants can avail to create such privity: Cox v. Bishop (1857) 8 De G.M. and G. 815. But if the covenant be negative, so as to restrict the mode of use and enjoyment of the land, then there is called into existence an equity attached to the property of such a nature that it is annexed to and runs with it in equity: Tulk v. Moxhay, 2 Ph. 774. This equity, although created by covenant or contract, cannot be sued on as such, but stands on the same footing with and is completely analogous to an equitable charge on real estate created by some predecessor in title of the present owner of the land charged. . . . effect is given to the negative covenant by means of the land itself. But the land cannot spend money on improving itself, and there is no personal liability on the owner of the land for the time being, because there is no contract on which he can be sued in contract.’

Farwell J
[1905] 1 Ch 391
Cited by:
Cited – Barclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
Appeal from – In re Nisbett and Potts Contract CA 1906
The purchaser had agreed to accept a possessory title less than the statutory minimum of 40 years.
Held: Even though he or she extinguishes the estate of the paper owner, a squatter takes subject to the incumbrances on the estate that are not . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract, Land

Updated: 22 December 2021; Ref: scu.197749

Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd: ChD 1952

A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an assignment of the land and not the benefit of the covenant.
A vendor, who carried on the business of an ironmonger on premises known as Devonia, of which she was the owner, conveyed property opposite those premises to a purchaser. The conveyance contained a covenant by the purchaser not to carry on the business of an ironmonger on the property conveyed. The successor in title of the original covenantee sought to enforce the covenant against a successor in title of the original covenantor.
Held: The 1923 conveyance did not annex the benefit of the covenant to Devonia. Upjohn J: ‘In this difficult branch of the law one thing in my judgment is clear, namely, that in order to annex the benefit of a restrictive covenant to land, so that it runs with the land without express assignment on a subsequent assignment of the land, the land for the benefit of which it is taken must be clearly identified in the conveyance creating the covenant.’ A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word ‘assign’ was apposite to an assignment of the land and not the benefit of the covenant.

Upjohn J
[1952] Ch 286
England and Wales
Cited by:
Cited – Sargeant, and Sargeant v Macepark (Whittlebury) Limited ChD 8-Jun-2004
The landlord granted the tenant a licence to make alterations to the property, but imposed conditions on the use to be made of the resulting premises. The tenant objected.
Held: The landlord was entitled when granting consent to take into . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 December 2021; Ref: scu.199282

Federated Homes Ltd v Mill Lodge Properties Ltd: CA 29 Nov 1979

Covenents Attach to entire land not just parts

Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section provides for statutory annexation of any covenant which touches and concerns the land, and the covenant is annexed to every part of the land, in the absence of a clear contrary indication.
Lord Brightman said: ‘An express assignment of the benefit of a covenant is not necessary if the benefit of the covenant is annexed to the land. In that event, the benefit will pass automatically on a conveyance of the land, without express mention, because it is annexed to the land and runs with it.’ The covenant ‘related to the land of the covenantee’, or touched and concerned the land, even if the document must show an intention to benefit identified land.’ and ‘If, as the language of section 78 implies, a covenant relating to land which is restrictive of the user thereof is enforceable at the suit of (1) a successor in title of the covenantee, (2) a person deriving title under the covenantee or under his successors in title, and (3) the owner or occupier of the land intended to be benefited by the covenant, it must, in my view, follow that the covenant runs with the land, because ex hypothesi every successor in title to the land, every derivative proprietor of the land and every other owner and occupier has a right by statute to the covenant. In other words, if the condition precedent of section 78 is satisfied; that is to say, there exists a covenant which touches and concerns the land of the covenantee–that covenant runs with the land for the benefit of his successors in title, persons deriving title under him or them and other owners and occupiers.’
and ‘I find the idea of the annexation of a covenant to the whole of the land but not to a part of it a difficult conception fully to grasp. I can understand that a covenantee may expressly or by necessary implication retain the benefit of a covenant wholly under his own control, so that the benefit will not pass unless the covenantee chooses to assign; but I would have thought, if the benefit of a covenant is, on a proper construction of a document, annexed to the land, prima facie it is annexed to every part thereof, unless the contrary clearly appears.’
Lord Justice Megaw: ‘For myself, I would regard the observations made in the passage which Brightman LJ read from Megarry and Wade, The Law of Real Property, 4th edition, page 763, as being powerful reasons, and I find great difficulty in understanding how, either as a matter of principle, or as a matter of practical good sense in relation to a legal relationship of this sort, it can be said that a covenant, which ex hypothesi has been annexed to the land as a whole, is somehow or other not annexed to the individual parts of that land.’

Lord Justice Brightman, Lord Justice Megaw
[1980] 1 WLR 594, [1980] 1 All ER 371, [1979] EWCA Civ 3
Bailii
Law of Property Act 1925 78(1)
England and Wales
Citing:
Cited – Rogers v Hosegood ChD 1900
The vendors were partners in Cubitt and Co, a well-known firm of builders who had laid out land in Palace Gate, Kensington in building plots suitable for large private houses. In 1869 they twice sold and conveyed plots to the Duke of Bedford subject . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Re Union of London and Smith’s Bank Ltd’s Conveyance, Miles v Easter ChD 1933
The court considered whether a covenant which was annexed to retained land was annexed to the entire plot only, and not to any part of it.
Bennett J said: ‘In my judgment, in order that an express assignee of a covenant restricting the user of . .
Cited – Tophams Ltd v Earl of Sefton HL 1967
Section 79 of the Law of Property Act (relating to the burden of covenants) achieved no more than the introduction of statutory shorthand into the drafting of covenants. It does does not have the effect of causing covenants to run with the land . .
Cited – Drake v Gray CA 1936
The court considered the enuring of the benefit of a restrictive covenant. Romer LJ said: ‘. . where one finds not ‘the land coloured yellow’ or ‘the estate’ or ‘the field named so and so’ or anything of that kind, but ‘the lands retained by the . .
Cited – Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board CA 1949
Benefit of Covenant Ran with Land
In 1938, landowners and the Catchment Board agreed that the Board would make good and maintain the banks of a stream, with the landowners contributing to the cost. The agreement was not said to be for the benefit of the landowner’s successors in . .

Cited by:
Cited – Crest Nicholson Residential (South) Ltd v McAllister ChD 18-Nov-2002
A vendor/purchaser covenant was not to use the premises, ‘for any purpose other than those of or in connection with a private dwellinghouse.’ The parties requested the court to construe its meaning. The meaning had been considered before and settled . .
Cited – Crest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
Cited – Roake and others v Chadha and another QBD 1984
Land was laid out in individual lots and sold off in a standard form requiring that no building should be erected other than one private dwelling house and that plans should be submitted for approval. The defendants purchased one lot and wished to . .
Cited – Mohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – Seymour Road (Southampton) Ltd v Williams and Others ChD 29-Jan-2010
The claimant sought a declaration that restrictive covenants imposed in 1896 affecting its land were no longer effective.
Held: The declaration was granted. Under the 1881 Act (as opposed to the 1925 Act) covenants were not automatically . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 22 December 2021; Ref: scu.196677

Rhone and Another v Stephens: HL 17 Mar 1994

A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house.
Held: His appeal was dismissed. Equity can enforce negative covenants on a freehold against subsequent owners, but not the burden of positive burdens. Such a burden did not pass with the land. To allow the enforcement would go against the common law rule preventing a third party enforcing a contract to which he was not party. The burden of a positive covenant will not be enforced against the covenantor’s successors in title, and nothing in section 79 has the effect of causing the burden of a positive covenant to run with the land.
Lord Templeman said: ‘Conditions can be attached to the exercise of a power in express terms or by implication. Halsall v. Brizell was just such a case and I have no difficulty in wholeheartedly agreeing with the decision. It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may be enforced by depriving the covenantor’s successor in title of every benefit which he enjoyed thereunder. The condition must be relevant to the exercise of the right.’ and ‘Restrictive covenants deprive an owner of a right which he could otherwise exercise. Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors in title without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it. Enforcement of a positive covenant lies in contract; a positive covenant compels an owner to exercise his rights. Enforcement of a negative covenant lies in property; a negative covenant deprives the owner of a right over property.’

Lord Templeman, Lord Oliver of Aylmerton, Lord Woolf, Lord Lloyd, Lord Nolan
Independent 23-Mar-1994, Times 18-Mar-1994, [1994] 2 WLR 429, [1994] 2 AC 310, [1994] UKHL 3, [1994] 2 All ER 65
Bailii
England and Wales
Citing:
Cited – Austerberry v Oldham Corporation CA 1882
Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns.
Held: Neither the . .
Appeal from – Rhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
Cited – Spencer’s Case 1583
An assignee of a lease will take both the benefit and burden of the covenants in the lease provided that there is privity of estate as between the person enforcing the covenant and the person against whom enforcement is sought, and the covenant . .
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited – Haywood v The Brunswick Permanent Benefit Building Society CA 1881
The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings.
Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it.
Brett LJ . .
Cited – Cooke v Chilcott 1876
The purchaser of land with a well covenanted to erect a pump and reservoir and to supply water from the well to all houses built on the vendor’s land. Enforcement was sought against a purchaser.
Held: He had purchased with notice of the . .
Cited – Cox v Bishop 1857
The lease was assigned to a man of straw.
Held: The covenants in the lease could not be enforced against an equitable assignee of the lease who had entered into possession. The covenants were not enforceable because there was no privity of . .
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Morland v Cook CA 1868
Land below sea level was partitioned by a deed with a covenant that the expense of maintaining the sea wall should be borne by the owners of the lands and payable out of the lands by an acre-scot.
Held: The covenant was enforced against a . .
Cited – In re Nisbet and Potts’ Contract 1905
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the . .
Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
Cited – Jones v Price 1965
Willmer LJ said: ‘a covenant to perform positive acts . . is not one the burden of which runs with the land so as to bind the successors in title of the covenantor: see Austerberry v. Oldham Corporation.’ and ‘ . . properly speaking, an easement . .
Cited – Tophams Ltd v Earl of Sefton HL 1967
Section 79 of the Law of Property Act (relating to the burden of covenants) achieved no more than the introduction of statutory shorthand into the drafting of covenants. It does does not have the effect of causing covenants to run with the land . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .

Cited by:
Cited – Allied London Industrial Properties Limited v Castleguard Properties Limited CA 24-Jul-1997
The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal . .
Cited – Cantrell v Wycombe District Council CA 29-Jul-2008
The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was . .
Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
cgis_britelChD2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 22 December 2021; Ref: scu.88768

Zarbafi v Zarbafi and Others: CA 2 Oct 2014

The defendant appealed against orders which granted declarations by way of summary judgment in favour of the claimants in relation to the beneficial ownership of freehold and leasehold property in England, and secondly injunctions originally obtained by the claimants without notice, designed to regulate the defendant’s conduct pending the submission to the court on a future application of proposals for the disposal of one of those properties.
He submitted that the issues as to the beneficial ownership of the properties were unsuitable for summary judgment rather than a full trial, and that the judge’s decision to continue the injunctions was vitiated both by inappropriate findings that the defendant was dishonest in his dealings with the claimants, which ought not to have been made before a full trial, and because of the absence of any prior threat by the defendant to do the acts prohibited by the injunctions.
Held: The appeal was allowed and the matter sent for trial.

Rimer, Briggs, Floyd LJJ
[2014] EWCA Civ 1267
Bailii
England and Wales

Land, Trusts

Updated: 21 December 2021; Ref: scu.537240

Copeland v Greenhalf: ChD 1952

If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both uncertain and too extravagant. Upjohn J rejected the claim on the ground that: ‘Practically, the defendant is claiming the whole beneficial user of the strip of land . . It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner.’

Upjohn J
[1952] Ch 488, [1952] 1 All ER 809
England and Wales
Cited by:
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Cited – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 21 December 2021; Ref: scu.185831

Chillingworth v Esche: CA 1923

The purchasers agreed in writing to purchase land ‘subject to a proper contract to be prepared by the vendors’ solicitors’ accepting andpound;240 ‘as deposit and in part payment of the said purchase money’. A contract was prepared by the vendor’s solicitors, approved by the purchasers’ solicitor, executed by the vendor and tendered to the purchasers for execution. At that point the purchasers declined to proceed with the transaction and claimed the return of the deposit.
Held: The signed document was conditional, and the purchasers could have return of their deposit. (per Sterndale) ‘To my mind the words ‘subject to contract’ or ‘subject to formal contract’ have by this time acquired a definite ascertained legal meaning-not quite so definite a meaning perhaps as such expressions as fob or cif in mercantile transactions, but approaching that degree of definiteness. The phrase is a perfectly familiar one in the mouths of estate agents and other persons accustomed to deal with land; and I can quite understand a solicitor saying to a client about to negotiate for the sale of his land: ‘Be sure that to protect yourself you introduce into any preliminary contract you may think of making the words ‘subject to contract’.’ I do not say that the phrase makes the contract containing it necessarily and whatever the context a conditional contract. But they are words appropriate for introducing a condition, and it would require a very strong and exceptional case for the clear prima facie meaning to be displaced.’
Pollock MR said: ‘This case . . does not involve a decision of what a deposit may be in all cases, but simply what it is in this particular case.
In Howe v Smith where the nature of a deposit was considered and the right of a purchaser to the return of it, Bowen LJ said: ‘The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look to the documents to see what bargain was made.’ And Cotton and Fry LJJ say substantially the same thing. Therefore we have to consider what in fact was the effect of the document of July 10, 1922, not forgetting the contemporaneous documents, and to ask ourselves whether this deposit was by those documents intended to pass irrevocably to the vendor if the purchasers did not carry out the transaction. In all the circumstances of this case, I think the deposit is recoverable by the purchasers. There was no provision made in the documents which would justify the vendor in declining to return it; though if he had, by appropriate words, made provision for that in the document, such a provision could have been upheld.’

Warrington LJ, Sir Ernest Pollock MR
[1924] 1 Ch 97, [1923] All ER Rep 97, 93 LJ Ch 129, 129 LT 808, 40 TLR 23, 68 Sol Jo 80
England and Wales
Citing:
Cited – Howe v Smith CA 1884
A contract for the sale of land required the purchaser to pay andpound;500 ‘as a deposit and in part payment of the purchase money’, and that if the purchaser failed to complete on time the vendor should be free to resell and recover any deficiency . .

Cited by:
Cited – Confetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a . .
Explained – Gribbon v Lutton and Another CA 19-Dec-2001
The defendant solicitors acted in obtaining and holding a deposit on the sale of land. They issued interpleader proceedings which decided that the deposit was payable to the purchaser. The vendor then sued the solicitors in negligence. The . .
Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 21 December 2021; Ref: scu.183730